Plaintiff resides in Massena, New York. Defendant Kay Jewelers, Inc. ("Kay") is a New York corporation; defendant Sterling, Inc. ("Sterling") is an Ohio corporation with its principal place of business in Akron, Ohio. Both defendants are in the jewelry business.

Plaintiff began her employment with Sterling on November 6, 1994. Sometime in late 1995, she became pregnant. In early 1996, her supervisor became aware of and expressed his displeasure to plaintiff regarding her pregnancy. In fact, personnel officer Michael Lynch specifically told plaintiff: "we are not a family oriented company, we are a business."

The Court need not visit at this time plaintiff's novel contention that differential treatment based upon an employee's desire to breast-feed her child constitutes sex discrimination under the HRL. Rather, the Court holds plaintiff's allegations may be construed as stating a claim for pregnancy discrimination under state law.

Plaintiff alleges in her complaint that she was pregnant from late 1995 until August of 1996. Compl. PP 9, 13. She therefore was a member of the protected class immediately prior to her discharge. Moreover, she adequately alleges satisfactory job performance, Compl. P 31, and was discharged on September 27, 1996. Compl. P 18. We are thus left with the question whether plaintiff sufficiently alleges her discharge occurred under circumstances giving rise to an inference of discrimination.

Plaintiff alleges that upon learning of her pregnancy, her supervisor expressed his displeasure at her condition. Compl. P 9. Specifically, her personnel officer informed her "we are not a family oriented company, we are a business." Id. Shortly after returning to work, defendants allegedly refused to allow plaintiff to bring her newborn child with her to the seminar, and fired her under the auspices of her refusal to attend. Id. PP 15-18. Given the circumstances and the timing of plaintiff's discharge, it is reasonable to infer plaintiff's termination was motivated by her employer's animus regarding her recent pregnancy.

Though plaintiff was discharged after the birth of her child, the PDA does not require that the discrimination occur during the pregnancy. Donaldson v. American Banco Corp., 945 F. Supp. 1456, 1464 (D.Colo. 1996); accord, Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1492 (D.Colo. 1997). Indeed, the legislative history of the PDA suggests it protects a woman from pregnancy-related discrimination "'before, during, and after her pregnancy.'" Donaldson, 945 F. Supp. at 1464 (quoting 124 Cong.Rec. 38574 (1978)). Nothing in the HRL suggests that its protections should be construed less broadly. Under the factual circumstances presented in the Complaint, plaintiff's allegation that she was terminated two weeks after returning to work and just over one month after the birth of her child is sufficient for purposes of both her membership in the protected class and an inference of discrimination. See Fejes, 960 F. Supp. at 1493; Donaldson, 945 F. Supp. at 1464-65.

Because plaintiff has alleged the elements of a prima facie case of pregnancy discrimination under the HRL, defendants' motion to dismiss Count One of the Complaint is DENIED.

2. Disability Discrimination

In Count Two of the Complaint, plaintiff alleges that her need to breast-feed her child constitutes a disability under the HRL, and that her dismissal on the basis of this disability was unlawful.

(a) a physical mental or medical impairment resulting from anatomical [or] physiological . . .conditions which prevents the exercise of a normal bodily function . . . or (b) a record of such impairment or (c) a condition regarded by other as such an impairment . . .

Pl. Mem. in Opp. at 9. Putting aside the question of whether "raising walls" is a normal bodily function, plaintiff, while breast-feeding, is not prevented from doing these activities because of any impairment. Rather, she is prevented by the act of holding and feeding a small child, with all the requisite care and attention involved. A mother or father who is bottle-feeding a child is prevented from "operating heavy machinery" in just the same way.

The Court is further persuaded that breast-feeding is not a disability under the HRL by cases addressing "disability" as defined by the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.2 The ADA's threshold analysis in determining whether a plaintiff is disabled applies to the HRL, see Sherman v. New York Life Ins. Co., 1997 U.S. Dist. LEXIS 11411, 1997 WL 452024, at *2 n.5 (S.D.N.Y.), though the HRL's requirements are, if anything, stricter than those contained in the ADA. See, e.g., Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 209 (E.D.N.Y. 1997) (noting HRL requires (1) prevention, while ADA requires substantial limitation, of (2) a normal bodily function (HRL) rather than a major life activity (ADA)); Aquinas v. Federal Express Corp., 940 F. Supp. 73, 79 (S.D.N.Y. 1996) (same).

Plaintiff's motion for judgment on the pleadings is based upon her contention that defendants, in their Answer, have admitted the allegations in Count One of the Complaint. This is simply not so. In their response to Count One of the Complaint, defendants aver: "In lieu of an answer, Defendants have moved to dismiss Plaintiff's First Cause of Action." Answer P 8. Moreover, defendants do not specifically deny plaintiff's allegations of pregnancy discrimination unrelated to breast-feeding because plaintiff does not allege such discrimination in so many words. The Court has afforded her the benefits of a favorable reading of her Complaint (to which she is entitled on a motion to dismiss) and construed her factual allegations to state a standard claim for pregnancy discrimination. Defendants, however, were not clearly on notice plaintiff stated such a claim prior to this Court's decision. The Court will not penalize them for failure to include specific denials in this respect.

A motion to amend may be denied where amendment would be futile. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). As to the statutory claim under § 79-e, nowhere in plaintiff's complaint is it alleged she was deprived of her right to breast-feed her child in any public or private location. See N.Y. Civ. Rights L. § 79-e. As to §§ 40-c and 40-d, plaintiff fails to allege she served notice of these claims on the attorney general as required by the statute. Id. § 40-d. The motion is therefore denied as to these claims.

Moreover, plaintiff's allegations fail to state a claim for intentional infliction of emotional distress. To state such a claim, plaintiff must allege conduct "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized [society].'" Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86 (1983) (quoting Restatement of Torts, Second, § 46 cmt. d (1965)). Plaintiff's allegations do not rise to such a level, and the motion to amend is denied in this respect.

Finally, as to plaintiff's claim that her termination violated New York public policy, the motion is denied. The court can find no New York case or federal case under New York law recognizing such a claim, and we decline to create a novel cause of action absent such recognition. See, e.g., City of Johnstown, New York v. Bankers Standard Ins. Co., 877 F.2d 1146, 1153 (2d Cir. 1989).

III. Conclusion

In summary, defendants' motion to dismiss is DENIED as to Counts One and Five of the Complaint, and GRANTED as to Count Two. Plaintiff's cross-motion for judgment on the pleadings is DENIED in its entirety. Plaintiff's motion to amend the Complaint is GRANTED with respect to the addition of Sterling Jewelers, Inc. as a defendant and as to the additional language contained in paragraph 19 of the proposed amended Complaint. The motion to amend is DENIED in all other respects.

IT IS SO ORDERED

March 11, 1998

Binghamton, New York

Hon. Thomas J. McAvoy

Chief U.S. District Judge

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.